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Wednesday, February 22, 2017

Texas innocence compensation still looks pretty good (compared to Kansas)

Nice to see that Texas' compensation statute for exonerees remains an aspirational standard for other states. The Kansas Legislature is considering a bill setting compensation levels at $80,000 per year, following Texas' example. A newspaper account of the debate included this Texas homage:

Texas, with its notorious tough-on-crime reputation, has the nation’s most generous compensation law. It pays a lump sum of $80,000 per year served, along with lifetime annuity payments of $40,000 to $50,000 plus $25,000 for every year someone was wrongfully registered as a sex offender. As of mid-2016, the state had paid $93 million to wrongfully convicted Texans.

Kansas' bill differs from Texas in that it does not include the annuity and "would exclude defendants who pleaded guilty or pleaded no contest to the crime," which account for a non-insignificant number of exonerees.

The reason innocence compensation passed in Texas, and the reason this legislation has a chance in Kansas, is that civil suits can cost local government much more:

In the absence of a compensation law, Kansas exonerees still are able to receive compensation through civil lawsuits. Eddie Lowery was exonerated in 2003 after serving nine years in prison for a rape and assault in Ogden that he didn’t commit. Seven years later, he won a $7.5 million settlement from Riley County.

Nine years @ $80k comes to $720,000, so Mr. Lowery would have gotten 9.6 percent of his settlement under the statute (though his attorneys fees had to come out of that larger amount). So local jurisdictions where exonerations have occurred all love the innocence compensation legislation because it a) caps liability and b) offloads liability onto the state.

That said, the lack of annuity in Kansas' statute may create problems down the line, this writer predicts. Here in Texas, our original compensation statute was set at $25,000 per year served. One of the men who received that sum, Wiley Fountain, ended up homeless and pushing a grocery cart around Dallas with all his belongings in it a few years after his compensation. Exonerees who were in prison for a long time, in some cases more than two decades, typically came out with few marketable skills and/or an array of health problems. So before the annuity, many would opt to sue instead of take state compensation, leaving local governments open to much larger liability.

I'm glad to see Kansas is considering an increase to its compensation and glad they consider Texas' system a model. To the extent they do, compensation of exonerees who pled guilty contributes to greater fairness, and the annuity makes the amount significant enough to justify plaintiffs avoiding the uncertainty of litigation.

Texas' law isn't perfect and there are still more situations where clearly innocent people cannot be compensated than one would prefer (the San Antonio Four come to mind). But Texas did a good thing passing that law, and the statute (as well as the compensation package) remains the best in the country.

Folks like Michael Morton, Anthony Graves, the late James Woodard, Christopher Scott, and many others, were able to regain what's left of till-then lost lives and even participate as spokesmen for the innocence movement which helped free them thanks to the security and independence Texas' compensation package gave them. Quite a few exonerees came to Austin repeatedly and busted their humps slogging office to office, session after session, telling their stories to anyone who would listen until that and other priority innocence-related legislation passed.

I don't know if that's what the bill push looks like in Kansas, but legislators here found the tactic irresistible. Good luck to our Jayhawker friends pushing this legislation.

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